Surrogacy can condemn children to a life of ‘genetic bewilderment’, says judge

28 July 2017

By John Pascoe

Many would-be parents, who can offer a child a good life but cannot themselves conceive, experience an aching desire for a child to nurture and care for.

Assisted reproductive technology (ART) has enabled those with reproductive difficulties, and those who are unable to have a child naturally, to start a family. In many, indeed most situations this is a happy occasion. However, it is uncontroversial to say that ART, including surrogacy, has significantly outpaced the capacity of the law to keep up with the technology. And it is here that desires of would-be parents can come into conflict with the rights of the child.

In Australian family law, surrogacy has been defined as:

[A]n arrangement whereby a woman (‘the surrogate mother’) agrees to conceive and bear a child, which she intends to transfer to another or others (the ‘commissioning couple’ or ‘commissioning husband’ and ‘commissioning wife’) upon the child’s birth.[1]

A surrogacy arrangement can be ‘altruistic’ where the surrogate mother is reimbursed for her pregnancy-related expenses only, or ‘commercial’, which is where the surrogate mother is paid a fee, above and beyond those expenses, to carry and birth the child. The former of these two arrangements is legal in Australia, and in many other international jurisdictions. The latter is illegal in most jurisdictions, with a few notable exceptions such as Ukraine and certain states of America such as California, Minnesota and Florida. Despite being illegal, commercial surrogacy is very popular in Australia and many Australian couples travel abroad every year to commission a child through international commercial surrogacy.

There is a large amount of literature on the topic of surrogacy; some arguing that it should be banned and others which would permit commercial surrogacy with varying levels of statutory regulation. It is a large topic and a serious one. In the midst of the myriad of arguments, it is easy to lose sight of the rights of the child.

In 1982, the global community decided to bestow a series of rights on the child. The United Nations Convention on the Rights of the Child (CRC) is an international law that demands every government that ratifies the CRC make the best interests of the child a primary concern when legislating on issues which directly or indirectly affect children. Australia was one of the first countries to sign the CRC.

Accordingly, international commercial surrogacy needs to be viewed within the context of the CRC. The CRC provides that all children, no matter where they live or how they were conceived, or the family arrangement in which they happen to live, have the right know their parents.[2] Moreover, Government has an obligation to help them preserve their identity, including name, nationality and family ties.[3]

The CRC was ground-breaking, as it was the first international law to recognise the importance of a child to know his or her origins; not only for medical and practical reasons, but also for the sense of identity and belonging which that knowledge entails.[4] It was the first convention to give children, not adults, the right to trace and to know their genetic history.

The use of anonymous genetic material and practical difficulties with locating a surrogate mother mean that it is not possible for many children born of international commercial surrogacy to ever learn their origins or genetic heritage.

Further, parents who commission a child via surrogacy often want their role as mum or dad undisputed. They may wish that their child never know that he or she is anything less than 100 percent theirs. This strikes at the heart of the right to know and creates an unnecessary bedrock of confusion, pain and secrecy. In an age of blood diseases, cancer and congenital disorders, where genetic history is important, it is irresponsible.

In Australia, the birth mother is automatically considered the legal parent and a parentage order is required to transfer legal parentage to the commissioning couple. However, parentage orders cannot be made where the child is the result of illegal commercial surrogacy. A child born abroad via commercial surrogacy may be left without legal parents in Australia. If parentage orders cannot be made, then the Family Courts may make parenting orders.[5] A commissioning parent in receipt of parenting orders is in effect a legally appointed carer, responsible for the safety of the child, but not necessarily the child’s legal parent with all the rights and duties that accompany such a position. Such a tenuous position cannot be in the best interests of a child.

This comment made by a now-adult surrogate child highlights the real human pain involved in surrogacy arrangements:

“Somewhere between [the] narcissistic, selfish or desperate need for a child and the desire to make a buck, everyone else’s needs and wants are put before the kids’ needs. We, the children of surrogacy, become lost. That is the real tragedy.”[6]

International commercial surrogacy can condemn children to a life of ‘genetic bewilderment’ and these gnawing questions about worth and identity. There is a duty on all of us, regardless of whether we are doctors or lawyers or scientists or parents, to ensure that the rights of the child are protected and not overridden by the desires of adults.


His Honour John Pascoe is chief judge of the Federal Circuit of Australia. He is a delegate to the Hague working group considering an international surrogacy convention.

He acknowledges the work of his Legal Associate, Lisa Churcher, in the preparation of this article, which is adapted from his 2016 Louis Waller Lecture given at the invitation of the Victorian Assisted Reproductive Treatment Authority (VARTA).

[1] Lowe and Barry and Anor [2011] FamCA 625 at [5] (Benjamin J).

[2] CRC art 7.1.

[3] CRC art 8.1.

[4] Besson, S. ‘Enforcing the Child’s Right to Know Her Origins,’ 21 IntlJlPolyFam 137, at 143.

[5] Family Law Act 1975 (Cth) s.61D.

[6] Usha Smerdon, ‘Crossing Bodies, Crossing Boarders: International Surrogacy between the United States and India’ (2008) 39 Cumberland Law Review 15, 60